Peter Lindsay

This is an appeal from a conviction for impaired operation of a motor vehicle and operation of a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL.

The appellant raised multiple grounds of appeal alleging breaches of Charter rights, including failures to provide adequate notice of the right to counsel, failure to facilitate contact with counsel of choice, and failure to preserve evidence.

The trial judge found certain breaches but declined to exclude the breath sample evidence or stay proceedings.

The appellate court dismissed all grounds of appeal, finding the trial judge's factual findings were open to him and his legal analysis was sound.

The appellant, convicted of operating a motor vehicle while impaired by lorazepam, appealed the conviction, arguing the trial judge erred by "entering the arena" through her own questioning, misapprehending evidence, and rejecting unchallenged testimony regarding her claim of accidental ingestion due to illness, fatigue, and rushing.

The Superior Court dismissed the appeal, finding the trial judge's questions permissible for clarification, her assessment of the appellant's credibility reasonable, and her reasons for rejecting the defence sufficient.

The court affirmed that the trial judge did not misapprehend the evidence and was entitled to reject the appellant's testimony for articulated reasons, even if certain aspects were largely unchallenged in cross-examination.

The appellant appealed his conviction for impaired driving, arguing a violation of his s. 11(b) Charter rights due to unreasonable delay, particularly concerning the impact of the COVID-19 pandemic, and errors in the trial judge's assessment of evidence.

The court dismissed the appeal, affirming the trial judge's finding that the net delay of 14 months and 9 days was reasonable given the exceptional circumstances of the pandemic and the local court context.

The court also upheld the trial judge's credibility findings and assessment of evidence, finding no palpable and overriding error.

The accused, Chundi Deng, applied for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time under s. 11(b).

The total delay from charge to anticipated trial end was 655 days, exceeding the 18-month (547-day) presumptive ceiling for the Ontario Court of Justice set by R. v. Jordan.

The court deducted 21 days for defence delay in retaining counsel.

The Crown argued for further deductions for defence delay and COVID-19 related exceptional circumstances.

The court rejected the Crown's argument for additional defence delay, finding the defence actions legitimate.

However, the court recognized the systemic impact of the COVID-19 pandemic as an exceptional circumstance, deducting 29 days for trial scheduling delays and a further 40 days as a realistic estimate of the pandemic's impact on trial scheduling in the Scarborough Courthouse.

Despite these deductions, the net delay remained 565 days, still exceeding the Jordan ceiling.

The court found the overall delay unreasonable and granted a stay of proceedings.

The appellant appealed convictions for impaired operation and having a blood alcohol concentration over the legal limit, arguing police lacked reasonable grounds for arrest (sections 8 and 9 Charter) and that delayed advice of the right to counsel (sections 10(a) and 10(b) Charter) warranted exclusion of evidence under section 24(2).

The court found police had reasonable grounds for arrest.

While acknowledging Charter breaches due to interpreter delay, the court re-evaluated the section 24(2) analysis, finding the trial judge erred in underestimating the breach's impact but ultimately concluding that admission of evidence would not bring the administration of justice into disrepute.

The appeal was dismissed.

The accused, Bowen Fan, was charged with impaired operation and operating a motor vehicle with excess alcohol.

The Crown conceded the impaired operation charge.

The defence brought a Charter application alleging breaches of Mr. Fan's s. 10(b) rights due to language barriers and denial of access to a third party to obtain counsel information.

The court found significant informational and implementational breaches of s. 10(b) due to the police's failure to ensure Mr. Fan understood his rights, provide an interpreter, or allow him to contact a friend for lawyer details.

Applying the Grant test under s. 24(2), the court found the seriousness and impact of the breaches outweighed society's interest in adjudication on the merits, leading to the exclusion of breath test evidence and dismissal of both charges.

The appellant appealed his conviction for 'Over 80', arguing that the trial judge erred in failing to find a breach of his s. 10(b) Charter right to counsel, misapprehended evidence, and failed to conduct a proper s. 24(2) analysis.

The appellant claimed his right to consult a third party (his wife) regarding counsel was infringed.

The Superior Court of Justice dismissed the appeal, finding no palpable or overriding error in the trial judge's conclusion that the police provided adequate opportunity for the appellant to consult his wife and did not interfere with his right to counsel of choice.

The court also held that even if a breach occurred, the evidence would not be excluded under the Grant framework.

Vanessa Porchetta appealed her conviction for driving with over 80 mg of alcohol, arguing breaches of her s. 10(b) Charter rights and an error in relying on hearsay evidence for the alcohol standard solution.

The trial judge found two s. 10(b) breaches but declined to exclude the breath readings under s. 24(2) of the Charter, deeming the breaches technical and their impact minimal.

The appeal court upheld the trial judge's decision, finding no unreasonable factual findings or errors in law regarding the Charter analysis or the admissibility of the breath technician's evidence concerning the alcohol standard solution.

The appeal was dismissed.

The Crown sought to permit a police officer to refresh his memory using both handwritten memo book notes and a typed General Report created through an automated voicemail transcription system.

The defence objected to reliance on the General Report.

The court granted the Crown's motion, finding that the General Report was admissible as a stimulus to refresh the witness's memory because the original audio voicemail was made contemporaneously with the events, and subsequent verification did not render it impermissible for use in refreshing memory.

The appellant, De Shen, appealed his conviction for impaired driving.

The trial judge had found him guilty of impaired driving but not guilty of driving with a blood alcohol concentration over 80 mg.

On appeal, the appellant argued that his Charter rights under sections 10(a) and 10(b) were infringed, and that the trial judge erred in assessing the evidence of impairment by dismissing the possibility of illness as speculative.

The court found that the police lawfully detained the appellant under the Highway Traffic Act, suspending his s. 10(b) rights at the roadside.

It also found that the appellant failed to establish a proper evidential basis for his claim that his s. 10(b) rights were infringed at the police station regarding counsel of choice.

While the trial judge erred in law by dismissing the illness defence as speculative due to lack of evidence, the appellate court applied the curative proviso, concluding that there was no reasonable possibility the verdict would have been different given the overwhelming evidence of impairment by alcohol.

The appeal was dismissed.

The appellant sought leave to appeal from a summary conviction appeal dismissal.

The appellant had been acquitted of impaired driving but convicted of refusal to provide a breath sample.

The appellant argued the conviction was unreasonable based on inconsistency with the acquittal, misapprehension of expert evidence, and the trial judge's independent research.

The Court of Appeal found no error by the summary conviction appeal judge and dismissed the application for leave to appeal, holding that the proposed appeal did not meet the test for leave as it raised no legal issues of significance to the general administration of justice.

The appellant appealed his conviction for driving "Over 80," arguing the trial judge misapprehended expert toxicology evidence regarding the possibility of a rising blood-alcohol concentration (BAC) curve.

The expert testified that a hypothetical scenario where BAC was below 80 mg at the time of driving but rose to 90 mg by the time of testing was possible, though unlikely.

The Superior Court dismissed the appeal, finding that the trial judge accurately apprehended the expert's evidence and was not left with reasonable doubt, correctly viewing the hypothetical as a mere possibility not tied to the specific evidence of the appellant.

The appellant appealed his conviction for operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.

He contended that the arresting officer violated his Charter rights by failing to consider whether residual mouth alcohol could have distorted the accuracy of the approved screening device (ASD) test result.

The Court of Appeal dismissed the appeal, holding that while officers should consider residual mouth alcohol as a matter of good practice, the failure to do so does not constitute a Charter violation.

The court found that the officer had reasonable grounds to arrest and make an evidential breath demand based on the information available to her at the time.

The defendant was charged with impaired driving after being stopped for speeding.

The Crown relied on blood alcohol test results showing readings of 96 and 95 milligrams of alcohol per 100 millilitres of blood, taken approximately three hours after the defendant was stopped.

A toxicologist provided expert evidence that the defendant's blood alcohol level at the time of driving exceeded 80 milligrams per 100 millilitres of blood.

The defendant challenged the toxicologist's assumptions regarding elimination rates, plateau periods, breath-to-blood conversion ratios, and other factors.

The court found that while the defence raised hypothetical scenarios that could theoretically affect the calculations, there was insufficient case-specific evidence to create a reasonable doubt about the Crown's case.

The defendant was found guilty.

The appellant appealed her summary conviction for impaired driving and driving over 80.

At trial, the Crown relied on a toxicologist's report that assumed the appellant had not engaged in bolus drinking within 15 minutes prior to the incident.

The trial judge found sufficient circumstantial evidence to disprove bolus drinking and convicted the appellant.

On appeal, the appellant argued the trial judge misapprehended the evidence and reversed the burden of proof.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's factual inferences regarding the absence of bolus drinking.

The appellant was convicted of two counts of fraud over $5,000 relating to small business loans obtained under Industry Canada's Small Business Loan Program.

The loans were fraudulently obtained for purposes other than those specified in the program requirements.

The sole issue at trial was whether the appellant, a professional loan broker, knowingly participated in the frauds.

The trial judge found the appellant guilty on both counts and imposed a 90-day intermittent sentence on the first count followed by a consecutive 12-month conditional sentence on the second count.

The appellant appealed both conviction and sentence, raising arguments regarding misapprehension of evidence, credibility analysis, and burden of proof, as well as seeking leave to appeal the sentence on parity grounds.

The Crown sought to admit surveillance video evidence of an incident involving the accused, who was charged with care or control of a vehicle while impaired by alcohol.

The defence objected to the admissibility of the video on the grounds that no representative from the business that maintained the surveillance system was called to authenticate the copy, and that there was no evidence the video had not been altered.

The court ruled the video admissible, finding that circumstantial evidence and corroborating testimony from police officers and in-car videos established the accuracy and integrity of the surveillance recording on a balance of probabilities.

The defendant was charged with impaired driving and driving with excess blood alcohol following a collision at a gas station.

The Crown's case relied on observations of impairment before and after arrest, breath sample analysis, and toxicological evidence.

The defendant raised multiple Charter applications challenging the lawfulness of the arrest, the demand for breath samples, interpretation services, and the right to counsel.

The court found the defendant guilty on both counts after rejecting all Charter challenges and finding compelling evidence of impairment based on the totality of circumstances.

The defendant was charged with operating a motor vehicle with a blood alcohol concentration exceeding the legal limit (Count 1) and impaired driving (Count 2).

The Crown's case was based on observations of erratic driving by civilian witnesses, police observations of indicia of impairment, and breath test results showing 170 mg/100 ml and 160 mg/100 ml.

The court dismissed Count 1 because the Crown failed to prove that the breath samples were received directly into the approved instrument as required by s. 258(1)(c)(iii) of the Criminal Code.

The court found the defendant guilty on Count 2 based on the cumulative circumstantial evidence of impairment, including the protracted period of dangerous driving, physical indicia of intoxication, and the defendant's demeanor and confusion.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood.

The Crown sought to rely on breath sample analysis from an approved instrument.

The accused challenged the admissibility of the evidence on Charter grounds, arguing violations of sections 8 and 9 regarding the roadside screening demand, the reliability of the screening device results, the detention in the police cruiser, and the timing of the breath samples.

The court found no Charter violations and admitted the evidence, finding the accused guilty as charged.